KAUFMAN, Chief Judge:
In this case, we are once again confronted with an attempted appeal of an interlocutory order granting class action certification. Since the issues raised manifestly do not satisfy the tripartite test of "fundamentality," "separability" and "irreparable harm" governing our Court's extremely limited exception to the final judgment doctrine in class certification cases, we dismissed this appeal in open court. But, in light of the burgeoning caseload borne by this Court,
The facts necessary to our decision may be limned with broad strokes. Appellants, defendants below,
The allegations of the consolidated complaint
In August 1976, appellees moved for class certification under Fed.R.Civ.P. 23(b)(3) and (c)(1). Appellants resisted, "at every trench and barricade emplaced among the subdivisions of Rule 23," as Judge Frankel commented in the opinion below.
The trial court rejected these arguments, finding the common question of an overall conspiracy having the indirect effect of raising the general price level predominant over individual issues. Judge Frankel noted that impact might be presumed from proof of an overall conspiracy.
Judge Frankel refused to certify an appeal under 28 U.S.C. § 1292(b) (1970) because the "determination allowing a class action to proceed involves a particular appraisal of specific facts and is to a measurable extent discretionary." Accordingly, he concluded, "this is not a suitable case for burdening the Court of Appeals." We can only wish that appellants, represented as they are by a stunning array of able counsel, had heeded his words.
Since this appeal has not been certified by the district court, it must be dismissed unless the order falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949).
A review of the cases that have dealt with the issue presented to us may serve to clarify any confusion which may persist on the question. Several circuits have found that orders certifying a class action, because of their tentative nature, can never satisfy the Cohen doctrine.
The well-established rule of this circuit is that a class action determination is "fundamental" only when the individual damage claim of the class representative is so small that the suit would not continue as a private action.
It is readily apparent that the viability of the present action does not turn on class certification. If the named plaintiffs are successful, their damages, when trebled, can be expected to be substantial. Moreover, the statutory provision allowing recovery of attorneys' fees gives plaintiffs' counsel an incentive to pursue this action regardless of the size of the claims. See Kohn v. Royall, Koegel & Wells, supra, 496 F.2d at 1100; Shayne v. Madison Square Garden Corp., 491 F.2d 397, 402 n.15 (2d Cir. 1974).
In addition to fundamentality, appellants must also show that an exceptional issue exists that can be conclusively determined without delving into the merits of the underlying claim. Accordingly, we will review finite determinations of judicial power — such as the notice issue decided in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) — but not discretionary decisions which vary from case to case. See General Motors Corporation v. City of New York, 501 F.2d 639, 646-47 (2d Cir. 1974).
As noted earlier, appellants' major contention is that common questions do not predominate because a determination of liability, as well as damages, depends on a showing of impact on each class member. A similar claim was raised in In re Master Key Antitrust Litigation, 528 F.2d 5 (2d Cir. 1975). In dismissing that appeal, we noted that "the question of what must be proven to establish liability is not a matter separable from the claim for relief." 528 F.2d at 12.
Indeed, Windham v. American Brands, Inc., 565 F.2d 59 (4th Cir. 1977) (en banc), petition for cert. filed, ___ U.S. ___, 98 S.Ct. 1605, 55 L.Ed.2d 58 (1977), the primary case upon which appellants rely in their appeal for the principle that class certification is inappropriate when there are individual issues of impact, supports the view that Judge Frankel's discretionary decision should be left undisturbed. Windham, involving a denial of class action certification, decided that issues such as the predominance of common questions and manageability were so largely factual that they should be left to the lower court's discretion.
This Court has repeatedly held that the predominancy question is not an issue capable of separation from the merits. See Parkinson v. April Industries, Inc., supra, 520 F.2d at 656; General Motors Corporation v. City of New York, supra, 501 F.2d at 647; Kohn v. Royall, Koegel & Wells, supra, 496 F.2d at 1100. Similarly, the inadequacy of class representation, another of appellants' contentions, has also been held unsuitable for interlocutory review under the final judgment doctrine. See Schlick v.
It is also urged that appellants will be irreparably injured if we do not allow this appeal. In considering this question, "[a]ttention . . . must be directed to the incremental costs and time in defending the particular action if it is maintained as a class action." Kohn v. Royall, Koegel & Wells, supra, 496 F.2d at 1100. In this case, there is a strong argument that the incremental burden imposed by the class action will not be substantial. A countywide conspiracy would still have to be proved were this suit to proceed as a private action. And appellants will also be defending a very similar action by the International Telephone & Telegraph Corporation. Moreover, the burden of class litigation ipso facto does not justify immediate appellate review. See Parkinson v. April Industries, Inc., supra, 520 F.2d at 653-54.
Although perfunctorily acknowledging the tripartite test, appellants in reality are asking us to modify our rule, to permit an appeal of a class certification order whenever the class is numerous.